Opinion
February 17, 2000
Order, Supreme Court, Bronx County (Janice Bowman, J.), entered on or about January 16, 1999, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Jeffrey S. Stillman, for plaintiff-respondent.
Jeffrey S. Harwin, for defendant-appellant.
NARDELLI, J.P., TOM, WALLACH, RUBIN, ANDRIAS, JJ.
There is no merit to defendant's contention that the assumption of the risk doctrine bars plaintiff's claim for personal injuries caused by his tripping on a carpeted indoor running track, which was owned and maintained by defendant health club. The ripples in the carpet that plaintiff alleges caused his fall cannot, on this record, be found to constitute an inherent risk of the sport of indoor track, as opposed to a defective condition occurring in the ordinary course of the property's maintenance and implicating typical comparative negligence principles (see, Morgan v. State of New York, 90 N.Y.2d 471, 485-486, 488-489). Nor is there merit to defendant's argument that the alleged defect was so trivial as not to be legally actionable, in view of the deposition testimony that defendant had been given at least several days prior notice of the ripples in the carpet and that other members of the fitness center had allegedly fallen on the same track surface (see,Gutierrez v. Riverbay Corp., 262 A.D.2d 64, 691 N.Y.S.2d 452).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.